Volume 21, number 1
Editorial: Israel: Cry, the beloved country; In this issue
Editorial Reflection
Günter Frankenberg, Constituting the negative globality of fear
I•CON Foreword
Sergio Verdugo, Is it time to abandon the theory of constituent power?
Articles
David Kosař and Katarína Šipulová, Comparative court-packing
Focus: Poland and Hungary
Zoltán Szente, The myth of populist constitutionalism in Hungary and Poland: Populist or authoritarian constitutionalism?
Michal Krajewski, The constitutional quandary of social rights: Questions in times of the Polish illiberal turn
Critical Review of Governance
Matt Qvortrup and Leah Trueblood, The case for supermajority requirements in referendums
Symposium: The (Mis)appropriation of Human Rights by the New Global Right
Gráinne de Búrca and Katharine G. Young, The (mis)appropriation of human rights by the new global right. An introduction to the symposium
Jayne Huckerby and Sarah Knuckey, Appropriation and the rewriting of rights
Başak Çalı and Esra Demir-Gürsel, Continuity and change in human rights appropriation: The case of Turkey
Farrah Ahmed, Constitutional parasitism, camouflage, and pretense: Shaping citizenship through subterfuge
Marta R. de Assis Machado, Antiabortion legal mobilization in Brazil: Human rights as a field of contention
Kapya Kaoma, The interaction of human rights and religion in Africa’s sexuality politics
Review Essay
Vanessa A. MacDonnell, Theorizing about the executive in the modern state. Review of Margit Cohn, A Theory of the Executive Branch: Tension and Legality
Book Reviews
Zachary Elkins. Review ofDonald L. Horowitz, Constitutional Processes and Democratic Commitment
Blake Emerson. Review ofElizabeth Fisher & Sidney A. Shapiro. Administrative Competence: Reimagining Administrative Law
Sanford Levinson. Review ofYasuo Hasebe. Towards a Normal Constitutional State: The Trajectory of Japanese Constitutionalism
ABSTRACTS
Günter Frankenberg, Constituting the negative globality of fear
This Editorial Reflection traces the global proliferation of pandemic fears and follows them through psychological theories as well as legal measures of infection control. Pandemic fears are included in the controversial discussion on how laws and constitutions (should) protect freedom in a pandemic and how the fear of contagion and the insecurity triggered by infection protection measures reinforce each other and contribute to the negativity of a pandemic. In closing, the article presents different forms of fear denial such as conspiracy myths, stimulated by anti-COVID-19 regimes of law and politics.
Sergio Verdugo, Is it time to abandon the theory of constituent power?
A group of scholars has shown that the theory of constituent power—which seeks to describe and justify the dismantling of the constitutional order and its replacement with a new constitution—is flawed. The analytical tools the theory deploys fail to explain how constitution-making processes unfold. Also, the theory has been subject to normative challenges that question its democratic nature. However, the theory remains a mainstream idea in many countries, and some academics have attempted to defend its democratic nature. I claim that those attempts have rendered the theory meaningless or failed to address all of its problems. I then raise two objections. First, the constituent power theory cannot be used to justify most—if any—constitution-making processes without an excessive idealization of the founding moment, but we are yet to understand the actual costs of that idealization. Second, redeemers of the theory need to decide whether constitution-making can operate under reasonably favorable electoral and democratic conditions or not. Ideal conditions are improbable when constitutional change is carried out in response to a crisis. In the unlikely case that these conditions can be met, using an idea of constitutional change as radical as the constituent power theory is not warranted from a normative perspective. I call this the dilemma of constituent power redemption.
David Kosař and Katarína Šipulová, Comparative court-packing
In the wake of Donald Trump’s presidency, a fierce discussion over expanding the US Supreme Court erupted. However, the expansion of a court’s membership is just one of several court-packing techniques. Moreover, the American debate is peculiar due to the unique features of the US Supreme Court. The aim of this article is to look at court-packing from a comparative perspective, to link the debates on tinkering with courts’ composition on both sides of the Atlantic, and to bring into the conversation a diverse scholarship in the Global North and the Global South. Based on experience from other parts of the world, this article provides a new, broader definition of court-packing that includes not only expansion of the court in question, but also emptying and swapping strategies. It then discusses the typical justifications for and dangers of court-packing and provides a prospective pragmatic mid-level theory that allows us to assess whether a given court-packing plan is legitimate. It argues that the legitimacy of court-packing has two dimensions: one focusing on whether court-packing pursues a legitimate aim (ius ad bellum of court-packing) and a second dimension exploring whether court-packing itself is implemented legitimately (ius in bello of court-packing). This means that even if politicians have a “just cause” for court-packing, their actions are still limited.
Zoltán Szente, The myth of populist constitutionalism in Hungary and Poland: Populist or authoritarian constitutionalism?
The article seeks to answer the question whether the analytical framework of “populist constitutionalism” adequately describes and explains the constitutional changes that the Hungarian and Polish populist governments have implemented, respectively, since 2010 and 2015. After presenting the similarities and differences between the Hungarian and Polish constitutional developments, the article discusses the conceptual attempts of populist constitutionalism, identifying the primary and secondary characteristics that the literature attributes to this phenomenon. The main point of the article is that these criteria only partially characterize the recent constitutional changes in these two countries, and that the features that do really prevail are more indicative of an unmarked authoritarian transition than of a new, specific version of constitutionalism. It describes the different reasons for the misapplication of constitutional populism to these two countries. Finally, it explains how counterproductive the misconception of populist constitutionalism is for understanding the recent constitutional development in Hungary and Poland.
Michal Krajewski, The constitutional quandary of social rights: Questions in times of the Polish illiberal turn
Scholars have intensely debated the justiciability of constitutional social rights, an essential aspect of transformative constitutionalism in Central and Eastern Europe. This article examines the reasons for displacing social rights in the Polish constitutional discourse and the obstacles in the way of these rights’ gaining normative substance. Polish society came out of socialist authoritarian rule with a strong attachment to social welfare but quickly embraced the neo-liberal economy. However, this attachment was recently recalled by the electoral successes of the social welfare platform of illiberal forces, which prompts questions about the place of social welfare in the constitutional settlement. The article relies on an inquiry into the constitution-making process and the practice of constitutional review during the global financial crisis. It argues that the displacement of social rights has been contingent upon the specific political and intellectual climate of stimulating a free-market economy and crisis-driven austerity, despite minority voices for alternative solutions. It was also due to structural weaknesses of constitutional review, operating in a challenging institutional and political context. This case study raises broader questions about whether and how constitutionalism can gain popular support in times of populist challenges by addressing persisting societal problems.
Matt Qvortrup and Leah Trueblood, The case for supermajority requirements in referendums
Referendums appear to be the most majoritarian of democratic processes. The simplicity and equality they offer through voting look like the essence of majoritarianism. Indeed, this simplicity and equality are often argued to be central to referendums’ appeal. This article argues that this appearance of majoritarianism is misleading. Paradoxically, without supermajority requirements, binding referendums on constitutional issues cannot offer the simplicity and equality majoritarianism requires. This article identifies three different types of majority requirements and where and when these requirements are used worldwide. It then demonstrates why, at least for binding referendums on constitutional questions, special majority requirements are necessary to maintain the principles of majoritarianism. It shows that there is always a case for turnout thresholds in referendums and further special majority requirements depending on the context. Finally, the article argues that the case for special majority requirements can be context-dependent without collapsing into indeterminacy.
Gráinne de Búrca and Katharine G. Young, The (mis)appropriation of human rights by the new global right. An introduction to the symposium
The meaning of human rights has always been susceptible to multiple, and sometimes conflicting, interpretations. Yet after several decades of efforts to develop an emerging, if dispersed and overlapping, normative consensus at the regional and UN treaty-system level, as well as within domestic constitutional and legislative settings, an array of efforts at concerted legal change in the human rights field has recently appeared in different parts of the world, on the basis of a supposedly reformed characterization of human rights, including in Putin’s Russia, Erdogan’s Turkey, Modi’s India, Bolsanaro’s Brazil, and the United States under the former Trump Administration, alongside developments in Uganda, Nigeria, and Ghana. We describe these arguments and moves as appropriations—and indeed as misappropriations—when they use human rights language in the service of ends which are exclusionary, repressive, or anti-pluralist in character, highly retrogressive or reversing of previous commitments, and evasive of external monitoring or accountability. We argue that by invoking the language, tools, and framework of human rights to exclude or repress particular groups and individuals, while consolidating authority and avoiding accountability, they misappropriate a human rights system which—despite extensive contestation and critique—has been developed over a long period around certain core values including equal human dignity, inclusion, and accountability. The essays in this Symposium track a range of these actors and the strategies they are using to reshape the human rights field, examining recent moves towards transnational coordination of nationalist, populist, right-wing, and authoritarian movements. The analyses from various jurisdictions around the world focus on attempts to remake and—we argue—reverse a range of progressive achievements of the human rights system around gender, religion, property, culture, and equality.
Kristina Stoeckl, Traditional values, family, homeschooling: The role of Russia and the Russian Orthodox Church in transnational moral conservative networks and their effors at reshaping human rights
In the last two decades, Russian state actors and the Russian Orthodox Church have come to play an increasingly important role in the undermining of established understandings of international human rights law by reinterpreting its aims and repurposing its institutions, in particular the Universal Declaration of Human Rights, the United Nations Human Rights Council, and the European Court of Human Rights. Russian state and church leaders have appropriated and coopted the language of human rights in order to advance an illiberal and nationalist agenda that undercuts democratic values and targets particular groups and their rights and freedoms—most notably liberal civil society, political opposition, and the LGBTIQ+ community. Written from the angle of a constructivist sociology of human rights, this article brings together three case studies of Russian rights appropriation around the topics of traditional values, family, and homeschooling and draws six lessons on the (mis)appropriation of human rights for illiberal purposes. The analysis of Russia’s rights appropriation sheds light on the background and build-up for current events in Russia’s war against Ukraine.
Jayne Huckerby and Sarah Knuckey, Appropriation and the rewriting of rights
The protective reach of human rights has expanded over time. However, some have argued that this expansion constitutes illegitimate rights inflation, and for some conservative stakeholders, the modern development of rights has been at odds with their positions on issues such as reproductive rights and marriage equality. Against this backdrop, the Trump Administration launched the Commission on Unalienable Rights in 2019 to “reexamine” rights. It might be expected that such an initiative would reject human rights. However, it embraced rights discourse, positioned it as central to US values and policy, and called on the United States to pursue rights with “renewed vigor.” This article offers a decoding of this apparent embrace. We argue that rather than renewing commitments to rights, the Commission appropriated human rights. It reworked the human rights canon from within by elevating some rights over others, and by narrowing rights in line with conservative takes on where rights come from, who they should protect, and which rights matter. This article offers a framework for analyzing how appropriation happens, and where and in what ways it is contested. We identify four core elements to appropriation and spaces for challenging it: messenger and motive legitimacy; process legitimacy; substantive legitimacy; and norm diffusion. This framework makes visible the sites and processes of appropriation under the cover of protecting rights, that in practice seek to roll back understandings of right and their sources. While the Commission was disavowed by the subsequent US administration, conservative efforts to redefine rights are ongoing—including through promotion of the Commission’s work—and share many of the same normative underpinnings of the Commission’s establishment and rollout. Making apparent the strategies and mechanisms of appropriation through this case-study therefore enables recognition of future conservative moves to appropriate rights and provides insights into how to resist such efforts.
Başak Çalı and Esra Demir-Gürsel, Continuity and change in human rights appropriation: The case of Turkey
This article analyzes the political and legal dynamics of continuity and change in the appropriation of human rights in Turkey against the backdrop of growing authoritarian practices. Human rights appropriation in Turkey has traditionally focused on the interpretation of human rights favoring national security and secular sensibilities to determine who has human rights and to what extent. The recent decade is a case of continuity and change. While the secularist frame has been replaced by a religious frame defining authentic human rights holders as members of the “pious” Turkish Muslim family and society, the national security frame has remained a continuous source of human rights appropriation. The article first offers an account of the dynamics of old forms of human rights appropriation in Turkey. It then analyzes the new actors, strategies, and transnational dimensions of new forms of human rights (mis)appropriation.
Farrah Ahmed, Constitutional parasitism, camouflage, and pretense: Shaping citizenship through subterfuge
Constitutional rights or values are sometimes used by governments to disguise, mask, or misdirect attention from the true nature of their actions. Such strategies of subterfuge are, by their nature, difficult to identify and prove. This article responds to the challenge of identifying and proving subterfuge by demonstrating three types of strategies of subterfuge governments may deploy. To that end it uses a close study of three strategies deployed in the Indian government’s defense of a controversial citizenship law. The first strategy is the introduction and incubation of nationalist versions of constitutional values, exemplified by the Indian government as it planted an alternative nationalist vision of secularism in legal and public discourse about citizenship. The second strategy is the appropriation of constitutional rights to serve as camouflage to deflect criticism of the government’s true aims; the Indian government illustrated this strategy as it used religious freedom to camouflage its goal of removing “infiltrators.” The third strategy is the appropriation of human rights precedents for state action which in fact breaches human rights. The article demonstrates how we might prove, identify, and establish each of these strategies, when they are at work.
Marta R. de Assis Machado, Antiabortion legal mobilization in Brazil: Human rights as a field of contention
This article analyzes the legal strategies used by the Brazilian antiabortion movement, observing its frames and argumentative strategies. It contextualizes the importance of the antiabortion movement within the recent conservative wave, as the movement had recently undergone a process of renewal, becoming one of the support bases for right-wing populist President Jair Bolsonaro’s government. The new configurations and strategies advanced by the movement reveal the centrality of lawyers and legal strategies, using the language of human rights. An analysis of court documents and public hearings at different political moments highlights recent shifts in antiabortion legal framings. While human rights language has always been ambivalent and contested, this article argues that what is taking place in the context of the reframed antiabortion movement is an appropriation (or misappropriation) of human rights, which distorts its most fundamental feature and advocates for anti-pluralist ends.
Kapya Kaoma, The interaction of human rights and religion in Africa’s sexuality politics
This article examines varieties of human rights appropriation in the context of sexuality politics in Africa. Noting how contested the landscape of human rights has been in Africa, it demonstrates how the human rights of lesbians, gays, bisexual, trans, queer, and intersex persons or sexual and gender minorities (LGBTQI+) are excluded from protection as a result of what are described as three interconnected predispositions. These predispositions are postcolonial, cultural, and religious tendencies within many African countries which adopt “othering” narratives that justify, and even sacralize, discrimination or violence based on gender identity and sexual orientation. The article analyzes the rights-based arguments—the appropriation of human rights language—used by anti-gay advocates in Africa, which emphasize rights to religion, culture, and family and exclude or deny the rights of LGBTQI+ people. This presentation of a human rights corpus and discourse which excludes LGBTQI+ rights, and which circulates both within and outside Africa, relies on alliances with the US Christian Right, and with the Vatican and Islamic leaders, to oppose sexual rights, and is often deployed by African politicians to retain political power. The article concludes by exploring the concept of ubuntu as a potential alternative to or as an accompaniment to human rights language, as a way of vernacularizing and Africanizing LGBTQI+ rights.
Vanessa A. MacDonnell, Theorizing about the executive in the modern state. Review of Margit Cohn, A Theory of the Executive Branch: Tension and Legality
Margit Cohn has written a terrific new book about the executive branch of state. Writing against the backdrop of a wave of executive aggrandizement in constitutional democracies around the world, Cohn sets herself the ambitious task of constructing a theoretical account of executive power. What emerges is a theory built around the twin themes of tension and legality. In most constitutional systems, she argues, the law provides broad general authorization for executive action, leaving the state with a wide margin to maneuver while still being able to brandish the mantle of legality. For Cohn, this raises rule of law and democracy concerns. In this review essay, I suggest that we should follow Cohn’s twin themes through to their logical conclusion. Perhaps controversially, I suggest that where this takes us is not exactly where Cohn ends up. Rather than countering strong executives with strong courts, we should adopt the plural approach Cohn mentions in passing at the outset of the book. This means exploiting institutions’ strengths and attempting to respond meaningfully to their weaknesses. In doing so, we must be careful not to adopt responses to executive power that erect unnecessary obstacles to governance in the public interest.
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